Share this

Read more!

Get our weekly email

Enter your email address

It has been
three years since the UK was admonished for failing to comply with its
obligations under the United Nations Convention on the Rights of
the Child. The UN Committee responsible for the convention
recommended that the UK government take ‘urgent measures’ to address a ‘general
climate of intolerance and negative public attitudes towards children,
especially adolescents’. Yet it is fair to say that, since then, since then,
the UK has failed to act on the Committee’s concerns.

In fact, we
have seen an escalation in negative public attitudes towards children and
adolescents. There are four areas within the criminal justice system alone
where the UK, in my opinion, is clearly in breach of the Convention. These relate
to the age of criminal responsibility, the failure to protect anonymity, having
children tried in adult courts and resorting to custody other than as a last
resort.

The August
riots provided a recent example of persisting negative attitudes to children.
We know now that only one-fifth of those charged with rioting and looting were
under the age of 18 yet press reports at the time carried headlines such as
this one from the Daily Mail, ‘Years of liberal dogma have spawned a generation
of amoral, uneducated, welfare dependent, brutalised youngsters’. Such coverage
only ostracises the generation that needs to be engaged.

Britain’s
breaches of its responsibilities to act in the best interest of the child as required by the UN Convention go further
than a negative public attitude. We lock up more young people than any other
European country; four times more under-18s than France, ten times more than
Spain and a hundred times more than Finland, according to NACRO, the crime
reduction charity.

An
overriding principle of the UNCRC is that, in all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, the primary consideration
must be the best interests of the child. Below are four ways in which the UK’s
youth justice system may breach the UNCRC.

Age of
Criminal Responsibility

The UNCRC
calls for nations to establish a minimum age ‘below which children shall be
presumed not to have the capacity to infringe the penal law’. In 2008, the
Committee expressed its concern at the young age of criminal responsibility in the UK. At
the time it was aged eight in Scotland and ten in England, Wales and Northern
Ireland – and recommended that the UK should raise it. The age of criminal responsibility varies around
the world. In Japan for example, offenders below age 20 are tried in a family
court, rather than in the criminal court system. In all Scandinavian countries,
the age of criminal responsibility is 15, as it is in the State of New York.
The age of criminal responsibility in Romania, Bulgaria and China is 14.

Perhaps in
response to the Committee’s observations Scotland raised the age of criminal
responsibility to 12. For Northern Ireland a recently published government
“Review of the Youth Justice System” suggests the age of criminal
responsibility there should be raised to 12, in line with Scotland and the
Republic of Ireland, and with consideration given after a period of time to
raising it further to 14.

But England
and Wales stubbornly holds on to the age of criminal responsibility remaining
at 10 years old for every child. In a statement in 2010 the Ministry of Justice
said: ‘We do not intend to raise the age of criminal responsibility. It is not
in the interests of justice, of victims or the young people themselves to
prevent serious offending being challenged.’

It was the
Labour government in 1998 which abolished doli incapax, a legal
protection which ensured that children between the ages of 10-14 accused of a
criminal offence were assessed on their individual level of capacity and
understanding before facing trial. In civil courts in England and Wales there
remains a requirement that each child be assessed for capacity in this way, but
in criminal courts a 10 year old is now considered as responsible as an adult
for their behaviour.

Loss of
anonymity

In August
2011, Theresa May, the British Home Secretary, called for the anonymity of juveniles
found guilty to be lifted, in direct contravention of the UNCRC. Her statement
said: ‘What I’ve asked is that CPS (Crown Prosecution Service) guidance should
go to prosecutors to say that where possible, they should be asking for the
anonymity of juveniles who are found guilty of criminal activity to be
lifted.”

Yet the Convention
is clear that every child accused of breaking the penal law shall have his or
her privacy fully respected at all stages of the proceedings. The phrase ‘all
stages of the proceedings’ includes the initial contact with law enforcement
(for example, a request for information and identification) up until the final
decision by a competent authority, or release from supervision, custody or
deprivation of liberty. The Convention is clear that the protection is there
‘to avoid harm caused by undue publicity or by the process of labelling’ and
that no information should be published that could lead to the identification
of a child offender and possibly stigmatise the child and have an adverse
impact on his or her safety or access to education, work or housing.

The damage
caused by the Home Secretary’s recommendation was highlighted in the case of a
16-year-old boy, who during the unrest in the UK, posted a message on a
Facebook page which said: ‘Letz go riot’. The boy, who did not leave his house,
nor manage to engage anyone in any disturbances, was given a community penalty
for his crime. Even though this was considered a relatively minor offence, his
identity was revealed and the press subsequently pursued him to the extent that
he had to hide indoors his home with the curtains drawn.

This appears to be a breach by the UK of its duties under the
UNCRC.

Children
tried in adult courts

The
Committee’s 2008 report also expressed concern that the UK continued to try
children in adult courts. The issue came into the spotlight again last year
with the trial of two ten-year-old boys for the alleged rape of an
eight-year-old girl. The trial took place at England’s most famous criminal
court, the Old Bailey, where notorious criminals such as Ian Huntley, Levi
Bellfield and the July 7th bombers have been tried.

The
European Court of Human Rights had already warned the UK in 2004 against the
practice of trying children in adult crown courts when it overturned the
conviction of an 11-year old who had been tried in the Crown Court. In
its judgment, the European Court stated that if the UK chose to try children as
criminals, rather than set up proceedings directed primarily at determining the
best interests of the child and of the community, it was essential that it was
done in a specialist tribunal able to give full consideration to and make
proper allowance for the child’s particular difficulties.

However,
despite criticisms from both the trial judge in the 2010 Old Bailey case and
the Judges in the Court of Appeal, children continue to be tried in adult
courts, an experience for children where it is known they can suffer
post-traumatic stress.

Locking
children up

The
convention specifies that custody should be used only as a last resort, yet the
incarceration figures for the UK are appalling. In Scandinavia, for example,
there are just 15 children in custody; in England and Wales there are thousands
of children in prisons. Custody is both expensive and ineffective, particularly
for children. It costs up to £250,000 a year and there is a high, nearly 72 per
cent, rate of reoffending. In fact, the evidence suggests that incarceration
increases the risk of recidivism. Other measures, such as restorative justice
where properly implemented, are cheaper, reduce recidivism and are felt by the
victims to be more satisfactory.

It is also
far too common in England and Wales for children to be kept locked up before
trial or sentence. In 2009, more than 40 per cent of those children remanded in
custody were subsequently acquitted or given non-custodial sentences. England
and Wales regularly breaches the Convention by keeping children in custody
overnight in police stations. Yet the law is clear. If bail is not appropriate,
children should be moved as soon as possible to local authority accommodation.
A survey by the Howard
League of more than half of all UK police stations, undertaken in 2008-9,
showed that more than 53,000 children under the age of 17 were held in police
cells overnight. This included 13,000 children between the ages of 9-13, some
of whom some were below the age of criminal responsibility.

Is the UK
acting in the best interests of its children, as it has a duty to do? The
evidence suggests not. It remains too reactive to the media with the result
that negative perceptions of children are given too much prominence. And
yet, as James Baldwin warned: ‘These are all our children and we will
either profit or pay for whatever they become.’

To read other articles in openDemocracy 50.50's new dialogue on social exclusion Centrestage click here

Related

This article is published under a Creative Commons
Attribution-NonCommercial 4.0 International licence. If you have any
queries about republishing please
contact us.
Please check individual images for licensing details.